Saturday, December 6, 2008
Andrew Siegel, Associate Professor of Law at Seattle University School of Law, is worried that the "fate of the poor" in US Constitutional law may deteriorate even further in the future - - - a scary prospect given the current economic crisis.
He provides three trenchant rationales in his remarks from a Symposium at University of South Carolina, entitled From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor, 59 South Carolina Law Review, 851 (2008), also available at SSRN: http://ssrn.com/abstract=1291323.
First, he argues that the "existing body of constitutional doctrine takes class more seriously" than the usual "caricature" of it would indicate. Second, he argues that while the Rehnquist Court may not have made any innovations in protecting the poor, it "largely respected the doctrinal status quo." And third, he contends that the Roberts Court "might be unwilling" to similarly respect the doctrinal status quo.
It's this third contention that is most interesting, of course. Siegel names Justice Roberts "more of a radical formalist" than Rehnquist, supporting his claim with a discussion of Parents Involved in Community Schools v. Seattle School District No. 1., 127 S. Ct. 2738 (2007). As befits comments from a Symposium, Siegel provides some personal insight:
I live in Seattle now, and it does not take a genius to understand how disconnected from reality the Court was in that case. I could give you a twenty- minute tour that proves how complicit the city of Seattle was in creating and perpetuating the racial segregation of the school system. Just take a tour and look at how many tiny elementary schools there are that are several blocks from other schools. Why is that? In large measure, I think the record in Seattle suggests it’s because breaking neighborhoods into microneighborhoods allows a city to maintain different schools for different races. If Seattle had built the number of schools that you would expect them to have, they would have had to draw the attendance zones broadly enough to have multiracial schools in a time where that was not particularly acceptable. Or look at the fact that the Seattle school district has drawn up its uniform policies so that in the central cluster where I live the three schools that are predominately white have been able to opt out of a supposedly mandatory school uniform policy. The kids at these schools go to school dressed like children in fashion catalogues, while the children who attend schools that are predominately minority almost all wear uniforms; the result is that everyone knows where these children go to school simply by looking at their uniforms. It is a different kind of discipline, a different kind of marking. (And, I could give you many more examples of the ways in which Seattle maintains what are fundamentally two separate public school systems.)
59 S.C. L. Rev. at 860. Siegel also discusses several other cases, most notably the voter identification case of Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008), to support his contention that the Roberts Court is "skeptical about real world concerns" and hostile to litigation.
Siegel's essay is brief (suitable for these hectic days at the end of the semester) and provocative (as discussions of socio-economic rights tend to be). It might also provide fodder for thinking about President-Elect Obama's proposals to assist the poor as the economic recession deepens.